award of $120,000.00 for non-pecuniary damages
e. Amount of Award
As noted above, non-pecuniary losses for emotional and physical harm
“are more difficult to prove [and quantify] than pecuniary losses,” and
“there are no definitive rules governing the amounts to be awarded.”
Guidance, at 6, 8. As discussed supra, the award should take into
account the severity and duration of the harm. Carpenter v. Department
of Agriculture, EEOC Appeal No. 01945652 (July 17, 1995). Based upon
our review of the evidence in the record, we conclude that the
agency’s non-pecuniary damages award of $12,000 fails to take into
account the severity and duration of complainant’s emotional distress.
Specifically, we find that the evidence10 supports the conclusion that
the second and third discriminatory non-selections, which occurred
during the 1997-1998 time-frame, caused complainant to endure at least
eight years of depression, anxiety, anger, shame, humiliation, marital
strain, spiritual turmoil, sleep disturbance and headaches. We also
find the record devoid of evidence to support the agency’s conclusion
that unrelated contributing stressors caused any part of complainant’s
emotional distress. Lastly, we note that the record does not support the
conclusion that complainant suffered any emotional distress or medical
condition prior to the 1997-1998 time-frame.
Based upon the severity and duration of complainant’s emotional distress,
we believe an award of $120,000 in non-pecuniary damages is fair and
appropriate here. See Durinzi v. United States Postal Service, EEOC
Appeal No. 01A41946 (July 28, 2005) ($120,000 in non-pecuniary damages
awarded where discrimination resulted in severe changes in personality
and habits, including a loss of self-esteem, anxiety, and depression over
a period of six years, despite the absence of medical evidence and the
presence of unrelated contributing stressors, as well as a preexisting
condition); See also, Franklin v. USPS, EEOC Appeal Nos. 07A00025 and
01A03882 (January 19, 2001) ($150,000 in non-pecuniary damages awarded
where complainant presented evidence of emotional distress, personality
changes, and severe strain on relationships over less than a six-year
period and did not present medical evidence); Truell v. Department of the
Army, EEOC Appeal No. 07A30056 (September 3, 2003) ($95,000 awarded in
non-pecuniary damages where complainant was a productive, well-adjusted
individual who, after the discriminatory non-selection, suffered a
loss of self-esteem, depression, grief, anguish, embarrassment, anger,
stress, weight-loss, sleeplessness, withdrawal from friends, co-workers
and family, and a general loss of enjoyment of life. Medical record
was sparse, but confirmed that complainant experienced work place
stress.); Toro v. United States Postal Service, EEOC Appeal No. 07A20095
(September 30, 2003) ($85,000 awarded in non-pecuniary damages where
discriminatory non-selection resulted in bouts of depression and marital
strain over less than a five-year period and where the record was devoid
of medical evidence.); O’Laco v. Department of Veterans Affairs, EEOC
Appeal No. 07A10089 (November 18, 2002), request for reconsideration
denied, EEOC Request No. 05A30341 (March 18, 2003) ($85,000 awarded
in non-pecuniary damages where discriminatory non-selection caused
complainant to experience emotional distress, which was severe for two
years and continued for a total of five years, and included humiliation,
anxiety, loss of self-esteem, insomnia, despite the absence of medical
treatment or corroborating testimony/evidence and the presence of other
contributing factors). This figure takes into account the nature,
severity, and duration of complainant’s suffering, is consistent with
other non-pecuniary compensatory damages awards given in similar cases,
and is not “monstrously excessive” standing alone or derived from passion
or prejudice.11
II. Equitable Relief
A. Back Pay
Based upon the fact that the agency’s preliminary back pay calculations
were higher than what was actually awarded, complainant asserts that
he is entitled to an explanation of the calculations that the agency
relied upon for its payment of back pay in the amount of $38,080.64.
In response, the agency asserts that it paid back pay from the date of
non-selection to the date of complainant’s voluntary resignation from
the agency in June of 2003. The agency claims that it relied on the
calculations provided by the USDA National Finance Center to make all
appropriate deductions and contributions in issuing the final award.
The agency also argues that complainant has presented no reason to
question the accuracy of the National Finance Center’s calculations.
The Commission recognizes that precise measurement cannot always be
used to remedy the wrong inflicted, and therefore, the computation of
back pay awards inherently involves some speculation. Hanns v. United
States Postal Service, EEOC Petition No. 04960030 (September 18, 1997).
However, uncertainties involved in a back pay determination should
be resolved against the agency which has already been found to have
committed the acts of discrimination. Id. See also Klook v. United
States Postal Service, EEOC Petition No. 04A40012 (June 16, 2004)
citing Davis v. United States Postal Service, EOC Petition No. 04900010
(November 29, 1990); and Besemer v. United States Postal Service, EEOC
Petition No. 04890005 (December 14, 1989). The Commission finds that it
is reasonable to require the agency to provide a clear and concise “plain
language” statement of the formulas and methods it used to calculate
complainant’s back pay. See also Vashi v. United States Postal Service,
EEOC Petition No. 0420060009 (December 5, 2007) (noting that it is the
agency’s obligation to ensure that its back pay calculations are clear,
supported in the record and in accordance with 29 C.F.R. § 1614.501.)
The Commission finds that it is unclear how the agency calculated
complainant’s back pay award. While the agency provided numerous spread
sheets containing unidentified calculations, there is no explanation in
the record as to the basis for such calculations. Such calculations are
meaningless if not understandable by the reader. Specifically, there
is no indication whether the back pay award included all forms of lost
compensation that complainant is entitled to, such as wages, bonuses,
vacation pay, in addition to all other elements of reimbursement and
fringe benefits, such as pension and health insurance. It is also unclear
whether and how interest was calculated and awarded.12 Accordingly,
we find that the agency has not complied with FAD1 with respect to the
order of back pay.
Taxes
Complainant also seeks the related equitable remedy of an award to cover
additional tax liability caused by receiving six-plus years back pay in
one year. See Sears v. Atchison Topeka & Santa Fe Railway Company, 749
F.2d I 1451, 1456 (1984); Goetze v. Department of the Navy, EEOC Appeal
No. 01991530 (2001). The agency agrees that complainant would be entitled
to any increase in taxes caused by being paid several years of back pay
in one year. However, the agency asserts that it is complainant’s burden
of proof to show the amount of additional taxes he must pay as a result
of the lump sum back pay payment. The agency also agrees to reimburse
this increased tax liability once complainant submits such evidence.
We agree with the agency that complainant has the burden of providing
the agency with evidence in support of a specific amount of additional
taxes caused by the lump sum award. Since we find that the agency failed
to comply with the back pay order, on remand, complainant will have an
opportunity to provide the agency with supporting evidence with respect
to this issue.
B. Reinstatement
The undisputed record shows that complainant resigned from ICE on June
15, 2003 (nine months prior to DHS’ issuance of FAD1). Approximately
two years later, on or about June 15, 2005, ICE informed complainant
that “it recently concluded that complainant was not entitled to
reinstatement since he voluntarily resigned from the agency in June
of 2003.” Thereafter, ICE informed DHS of its position and requested a
revision of FAD1’s order regarding reinstatement.13 On April 18, 2006,
subsequent to ICE’s request, DHS issued FAD2 which acknowledges FAD1’s
previous order with respect to reinstatement, but only resolves the
dispute between ICE and complainant with respect to compensatory damages.
FAD2 does not address the reinstatement dispute in any manner.
On appeal, complainant continues to seek compliance with FAD1’s order
regarding reinstatement while ICE maintains its position that complainant
is not entitled to reinstatement since he voluntarily retired in June,
2003. ICE also attempts to revisit the merits of FAD1’s discrimination
finding by arguing that the record below supports the conclusion that
complainant would not have been promoted, even absent discrimination.
As stated previously, we find the agency’s efforts to revisit the merits
of the discrimination finding improper since no appeal was ever filed.
See 29 C.F.R. § 1614.504(a). Moreover, without any such appeal, ICE has
no basis to modify or disregard any portion of the relief ordered. Id.
Accordingly, we find that the agency has failed to fully comply with
FAD1 with respect to reinstatement.
III. Attorney’s Fees
Complainant agrees that the agency provided payment of all his
attorney’s fees through August 17, 2005. However, complainant seeks
additional attorney’s fees reasonably incurred from August 17, 2005 to
the present date. The agency asserts that it has paid more attorneys’
fees than the amount that complainant is entitled to since a portion
of the discrimination finding was based upon a violation of the ADEA.
As stated above, complainant is entitled to reimbursement of all
proven reasonable attorneys’ fees with respect to each finding of
discrimination that was based, in part, on Title VII. See Santiago
v. Department of the Army, EEOC Appeal No. 01955684 (October 14, 1998).
The record shows that complainant incurred unpaid attorneys’ fees after
A2 submitted his fee petition but before this appeal was filed.14 Since
this decision not only modifies the compensatory damages award, but also
concludes that the agency failed to comply with its order of back pay
and reinstatement, we find that complainant should have an opportunity
to prove additional unpaid reasonable attorney’s fees for the efforts
of A2 to obtain compliance before the filing of this appeal.15
CONCLUSION
After a review of the record in its entirety, including consideration of
all statements submitted on appeal, we MODIFY FAD2, REMAND this matter,
and order the agency to take corrective action in accordance with this
decision and the Order below.
ORDER
Within thirty (30) days from the date this decision becomes final:
1. The agency shall offer complainant a position as a SAUSA or a similar
position in a similar capacity to be determined by complainant and the
agency. In the alternative, the agency shall promote complainant to
a Deputy District Counsel position in the DHS Miami District Counsel’s
Office;
2. The agency shall award complainant back pay at the GS-15 grade
level, less mitigation, for the period of time beginning on the actual
effective date of the personnel action (April 4, 1998). The agency
shall recalculate the back pay and interest owed to complainant in a
manner prescribed above and in accordance with 29 C.F.R. § 1614.501.
The agency shall provide a copy of these calculations to complainant.
Such calculations shall include a detailed statement clarifying how
complainant’s back pay award was reached. The statement shall consist
of a clear and concise, “plain language” statement of the methods of
calculations used for the instant matter and actual calculations applying
said formulas and methods. If there is still a dispute regarding the
exact amount of back pay and/or benefits, the agency shall issue a check
to complainant for the undisputed amount within thirty (30) days of the
date the agency determines the amount it believes to be due;
3. To the extent that it has not already done so, the agency shall pay
complainant $750 in pecuniary damages;
4. To the extent that it has not already done so, the agency shall pay
complainant $120,000 in non-pecuniary damages;
5. Within 180 days of the date this decision becomes final, the agency
shall train all responsible management officials, if still employed by
the agency, concerning the identification, prevention, and correction
of discrimination on the basis of sex and age;
6. The agency shall consider taking appropriate disciplinary action
against the responsible management officials. The Commission does not
consider training to be disciplinary action. The agency shall report
its decision to the compliance officer. If the agency decides to
take disciplinary action, it shall identify the action taken. If the
agency decides not to take disciplinary action, it shall set forth the
reason(s) for its decision not to impose discipline. If the responsible
management official has left the agency’s employ, the agency shall
furnish documentation of his departure date; and
7. The agency shall reimburse all of complainant’s reasonable attorneys’
fees incurred after the date of his most recent fee petition.
POSTING ORDER (G0900)
The agency is ordered to post at its U.S. Immigration and Customs
Enforcement, Chief Counsel’s Office, in Miami, Florida, copies of
the attached notice. Copies of the notice, after being signed by the
agency’s duly authorized representative, shall be posted by the agency
within thirty (30) calendar days of the date this decision becomes final,
and shall remain posted for sixty (60) consecutive days, in conspicuous
places, including all places where notices to employees are customarily
posted. The agency shall take reasonable steps to ensure that said
notices are not altered, defaced, or covered by any other material.
The original signed notice is to be submitted to the Compliance Officer
at the address cited in the paragraph entitled “Implementation of the
Commission’s Decision,” within ten (10) calendar days of the expiration
of the posting period.
ATTORNEY’S FEES (H0900)
If complainant has been represented by an attorney (as defined by
29 C.F.R. § 1614.501(e)(1)(iii)), he/she is entitled to an award of
reasonable attorney’s fees incurred in the processing of the complaint.
29 C.F.R. § 1614.501(e). The award of attorney’s fees shall be paid
by the agency. The attorney shall submit a verified statement of fees
to the agency — not to the Equal Employment Opportunity Commission,
Office of Federal Operations — within thirty (30) calendar days of this
decision becoming final. The agency shall then process the claim for
attorney’s fees in accordance with 29 C.F.R. § 1614.501.
IMPLEMENTATION OF THE COMMISSION’S DECISION (K0408)
Compliance with the Commission’s corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency’s report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission’s
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. § 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission’s
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
“Right to File A Civil Action.” 29 C.F.R. §§ 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. § 1614.409.
STATEMENT OF RIGHTS – ON APPEAL
RECONSIDERATION (M0408)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the
policies, practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party’s timely request for reconsideration. See 29
C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. § 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. § 1614.604(c).
COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (R0408)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. If you file a civil action, you must name as the defendant
in the complaint the person who is the official agency head or department
head, identifying that person by his or her full name and official title.
Failure to do so may result in the dismissal of your case in court.
“Agency” or “department” means the national organization, and not the
local office, facility or department in which you work. Filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0408)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
(“Right to File A Civil Action”).
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
June 11, 2008
__________________
Date
1 Due to a new data system, complainant’s case has been re-designated
with the above-referenced appeal number.
2 We note that complainant’s appeal raises compliance issues in addition
to disputing the compensatory damages award, which are accepted pursuant
to 29 C.F.R. § 1614.402 and 29 C.F.R. § 1614.405.
3 In complainant’s supplemental affidavit he states that he scheduled an
appointment with P1 “within the coming month.” However, this expense
is not sufficiently documented in the record and is more accurately
characterized as a future medical expense.
4 P1 states as follows: “I continue to treat [complainant] for his
problems stemming from the sex discrimination he has experienced at work.
His status remains as previously described and as he presents still
emotional about these issues, I intend to continue to treat him, seeing
him at least four times per year. Until this matter is resolved, I
believe at least four more years of treatment is likely to be necessary.”
5 For example, the agency sought additional records to support
complainant’s therapists’ diagnoses and opinions.
6 In addition, complainant affirmed that his family priest had recently
died.
7 To the extent that complainant asserts that he produced all documentary
evidence in his possession, we note that the record is not clear whether
complainant requested all relevant records in P1’s possession. However,
it is reasonably likely that P1 maintained relevant records in addition
to those provided by complainant.
8 We note that federal law prohibits the agency from revealing
information obtained from an EEO complaint to the general public.
See e.g., 5 U.S.C. 552a (b); Sofio v. Department of the Treasury, EEOC
Request No. 05880633 (September 12, 1988); and 42 U.S.C. § 2000e-8(e).
9 We note that evidence from a healthcare professional is not a
mandatory prerequisite for an award of compensatory damages. See Sinnott
v. Department of Defense, EEOC Appeal No. 01952872 (September 19, 1996);
Lawrence v. USPS, EEOC Appeal No. 01952288 (April 18, 1996).
10 Such evidence includes: (1) complainant’s testimony; (2) complainant’s
wife’s testimony; (3) complainant’s co-workers’ testimony; and (4) the
confirmation by P1 that complainant continues to suffer emotionally.
For reasons set forth above, we do not give significant weight to P1’s
diagnosis in his medical report. However, we rely upon sufficient
evidence in the record, based upon complainant’s own testimony, that
he sought psychological counseling to help him cope with the emotional
distress that the discriminatory non-selection caused.
11 Complainant also wants the agency to “gross up” the compensatory
damages award because complainant experienced harm and expenses in
“after-tax” dollars. The agency asserts that there is absolutely no legal
basis for complainant to obtain a “gross-up” in compensatory damages to
account for tax consequences and, thus, this claim should be disallowed.
We agree with the agency and note that complainant has not presented
any legal support for this claim.
12 We remind the agency that it may not deduct unemployment compensation
from the back pay award. See also Vashi v. United States Postal Service,
EEOC Petition No. 0420060009 (December 5, 2007) citing Scott v. United
States Postal Service, EEOC Appeal No. 01921641 (June 11, 1993).
In addition, the interest is properly computed on net back pay, rather
than gross back pay. See Kloock v. United States Postal Service, EEOC
Petition No. 04A40012 (June 16, 2004), citing Wrigley v. United States
Postal Service, EEOC Petition No. 04950005 (February 15, 1996).
13 There is no indication from the record that DHS ever responded to
ICE’s request.
14 A2 continued to work on issues related to compliance after his fee
petition.
15 In addition, we note that complainant is entitled to additional
reasonable attorneys’ fees associated with this appeal, as ordered below.
??
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2
0120063532
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
20
0120063532
reference:
Milton Aponte,
Complainant,
v.
Michael Chertoff,
Secretary,
Department of Homeland Security,
(Immigration and Customs Enforcement Agency)
Agency.
Appeal No. 01200635321
Agency No. 040228
